The Donald Trump presidency, coupled with the new Congress, is likely to produce major changes in federal law. But for the Supreme Court, expect a surprising amount of continuity – far more than conservatives hope and progressives fear.
If, as expected, Trump is able to replace Justice Antonin Scalia, the court will look a lot like it did until Scalia died in February: four relative liberals (Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor); two moderate conservatives (John Roberts and Anthony Kennedy); and three relative conservatives (Clarence Thomas, Samuel Alito, and the new justice).
That means it would reflect the same ideological makeup as the court that upheld Obamacare and required states to recognize same-sex marriages. It would contain the same five justices – a majority – who recently voted to, for example, invalidate restrictions on abortion.
A court like that won’t license a Republican-led executive branch to do whatever it wants. It will assert the rule of law. It will rarely veer off in novel directions.
Things will be different, though, if Trump is able to replace a liberal justice. Neither Ginsburg (who is 83) nor Breyer (78) is young. But they both appear to be healthy; don’t be surprised if they serve for the next four years.
Suppose, though, one of them does resign. At that point, significant changes would be possible. But probably not many.
One reason involves the idea of respect for precedent. The justices are usually reluctant to disturb the court’s previous rulings, even if they disagree strongly with them. In this light, would a new majority really want to announce in, say, 2018, states can ban same-sex marriage, after years of saying otherwise? That’s unlikely: Such an abrupt reversal would make the law seem unstable and awkwardly political.
Would a Trump court want to overrule Roe v. Wade, the law since 1973, and thus allow states to ban abortion? Considering the intensity of conservative opposition to abortion, that is somewhat more probable. But judges are not politicians, and again to avoid the appearance of destabilizing constitutional law, any majority would hesitate before doing so.
Would a court of Alito, Roberts, Kennedy, Thomas, and one or two Trump appointees grant broad new powers to the president? No, the current conservatives have shown a lot of skepticism about executive authority. That’s not going to change because the president is a Republican.
There is a more general point. Many judges ( Roberts in particular) are drawn to “judicial minimalism”; they prefer to focus on particular cases’ facts. Quite apart from respecting prior rulings, they like small steps and abhor bold movements or big theories.
An instructive example: In the 1970s, many progressives were terrified when President Richard Nixon found himself in a position to transform a left-of-center court and to appoint no fewer than four “strict constructionists.” And the Nixon court, as it was sometimes called, repeatedly disappointed the left. For example, it refused to recognize a constitutional right to education.
But the whole period is aptly described as “the counter-revolution that wasn’t.” The Nixon court maintained a lot of continuity with its predecessor. Believing the commitment to the rule of law entails humility and respect for the past, it preserved most precedents, even as it refused to build on them.
It’s true that with further changes in the court’s membership, we should expect to see some incremental movements in the law, including expansions in gun rights and new constraints on the power of regulatory agencies. But there’s an excellent chance in four years, constitutional law will look pretty much the same as it does now.
Bloomberg View columnist Cass R. Sunstein is the Robert Walmsley University Professor at Harvard.